Governor’s Role in Government Formation in a Hung Assembly
Constitutional Provision
- The Governor appoints the Chief Minister under Article 164 of the Constitution of India.
- The Constitution does not prescribe a fixed procedure for selecting a Chief Minister in a hung Assembly.
Objective of the Governor
- The Governor’s primary responsibility is to ensure the formation of a stable and responsible government in the State.
- The Governor must act according to constitutional conventions and not on personal discretion or political considerations.
Guidance from Committees and Courts
- Recommendations of the Sarkaria Commission, the Committee of Governors (1970), and various Supreme Court judgments guide the Governor’s actions in such situations.
- These bodies emphasised that the Governor’s personal opinion or arbitrary decision-making has no constitutional relevance.
Exploring Government Formation
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- The Governor should explore all possible options with political parties, alliances, and independent MLAs to form a stable government.
- The process should be completed within a “reasonable time” to prevent political instability and horse-trading.
President’s Rule as Last Resort
- If no party or alliance can form a stable government, the Governor may recommend President’s Rule under Article 356.
- The imposition of President’s Rule should be treated only as an extreme and final option.
Dissolution of Assembly
- In the B.R. Kapur Judgment and Rameshwar Prasad Judgment cases, the Supreme Court held that the Governor may dissolve the Assembly under Article 174(2)(b) even before its first sitting if no viable government can be formed.
Order of Preference for Inviting Parties
The Sarkaria Commission recommended the following order of preference for government formation
- A pre-poll alliance commanding majority support.
- The single largest party capable of proving majority support.
- A post-poll alliance with majority backing in the Assembly.
Minority Governments
- In the S.R. Bommai Judgment case, the Supreme Court stated that a government need not necessarily have an outright majority initially, provided it enjoys the confidence of the House.
- The judgment recognised the constitutional validity of minority and coalition governments.
Importance of Floor Test
- The Supreme Court has repeatedly held that a floor test in the Legislative Assembly is the most objective and transparent method to determine majority support.
- The confidence vote should generally be decided on the floor of the House rather than through the Governor’s personal assessment.
Concerns over Misuse of Powers
- Courts have cautioned that discretionary powers of Governors should not be misused for advancing the political interests of the ruling party at the Centre.
- Constitutional machinery in the State should be preserved as far as possible through democratic processes.
Pro-tem Speaker
- A Pro-tem Speaker is a temporary Speaker appointed for a specific period to conduct the official proceedings of the Lok Sabha or State Legislative Assemblies.
Details Regarding the Pro-tem Speaker
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- ‘Pro-tem’ is a Latin phrase; in English, it means ‘for the time being.’ Therefore, the temporary Speaker appointed for a specific duration to conduct the business of the Lok Sabha or State Legislative Assemblies is referred to as the ‘Pro-tem Speaker.’
- A Pro-tem Speaker is selected to conduct the proceedings of the House following the completion of elections to the Lok Sabha or Legislative Assemblies, and prior to the voting process for the election of the permanent Speaker and Deputy Speaker.
- The Constitution of India does not directly or explicitly use the term ‘Pro-tem Speaker.’
- The office of the Pro-tem Speaker ceases to exist immediately upon the election of a new permanent Speaker for the House.
Pro-tem Speaker in Parliament and State Legislatures
- The Pro-tem Speaker is appointed by the President of India or the Governor of the respective State.
- By convention, the most senior member of the House with the concurrence of the other members is appointed as the Pro-tem Speaker.
- He continues to conduct the proceedings of the House until a permanent Speaker is elected.
Duties
- To preside over the first session of the Lok Sabha or the State Legislative Assemblies.
- To administer the oath of office to the newly elected Members of Parliament (MPs) and Members of Legislative Assemblies (MLAs).
- To conduct the ‘Vote of Confidence’ in the House to enable the government to prove its majority.
- Conducting the election for the Speaker and the Deputy Speaker.
Constitutional Position
- The term ‘Pro-tem Speaker’ is not explicitly mentioned in the Constitution.
- However, Articles 94 and 95 (pertaining to Parliament) and Article 180 (pertaining to State Legislatures) of the Constitution make provisions regarding the duties to be performed when the office of the Speaker falls vacant.
Powers of the Governor over the State Legislature
- Sessions, Prorogation, and Dissolution of the State Legislature.
- The Governor shall from time to time summon the House or each House of the State Legislature to meet at such time and place as he thinks fit; but six months shall not intervene between the last sitting of one session and the date appointed for the first sitting of the next session.
The Governor may from time to time
- prorogue the House or either House
- Dissolve the Legislative Assembly.
Key Feature
- The Governor summons the members to a legislative session.
- It formally brings a legislative session to an end without dissolving the House.
- It brings the life of the Legislative Assembly to an end, thereby necessitating fresh elections.
- The Legislative Assembly must meet at least twice a year; this ensures that a maximum gap of only six months intervenes between the last sitting of one session and the first sitting of the next session.
- Although this action is usually undertaken on the advice of the Chief Minister, if such advice is received at a time when the Chief Minister’s majority strength is in doubt, the Governor may exercise his own discretion to make a decision.
Chief Minister and State Council of Ministers
- Context: Governor issued the order appointing the leader of the ruling party as Chief Minister under Article 164 of the Constitution.
- Article 164 of the Indian Constitution outlines the appointment, tenure, responsibilities, and qualifications of the Chief Minister and other Ministers in State governments.
Other Provisions Relating to Ministers
- The Chief Minister shall be appointed by the Governor, and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor.
- (1A) The total number of Ministers, including the Chief Minister, in the Council of Ministers in a State shall not exceed fifteen percent of the total number of members of the Legislative Assembly of that State. Provided that the number of Ministers, including the Chief Minister, in a State shall not be less than twelve. (Ninety-first Amendment Act).
- (1B) A member of the Legislative Assembly of a State or, in a State having a Legislative Council, a member of either House of the Legislature of that State belonging to any political party who is disqualified for being a member of that House under the Tenth Schedule shall also be disqualified to be appointed as a Minister.
- (2) The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State.
- (3) Before a Minister enters upon his office, the Governor shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule.
- (4) A Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister.
- (5) The salaries and allowances of Ministers shall be such as the Legislature of the State may from time to time by law determine; Furthermore, until the State Legislature so determines, they shall be as specified in the Second Schedule.
